The High Court dismissed the writ petition challenging a trial Court order appointing a Commissioner to demarcate disputed land. The Court held the order was in exercise of judicial discretion under Order 39 Rule 7 CPC and distinguished cited precedent, allowing no interference.
Petition dismissed; order appointing Commissioner is upheld.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 1999/2019
(2 of 3)
[CW-1999/2019]
Pradesh).
----Petitioners
Versus
Pushkar S/o Shri Rughnath Das, B/c Bairagi, Resident OfBhuvasiya, Tehsil And District- Pratapgarh, At Present- Revas Devra, Tehsil And District- Mandsaur (Madhya Pradesh).
----Respondent
For Petitioner(s) : Mr. Abhinav Jain For Respondent(s) :
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order
19/02/2019
The petitioners have challenged the order dated 30.11.2018, whereby the Judge, Trial Court has directed to appoint the Tehsildar as Commissioner with directions to conduct demarcation and take photographs for the disputed “Bara” in village Bhuvasiya, District- Pratapgarh.
Counsel for the petitioners submits that the power exercised was not available for the learned Judge and the order amounts to collecting evidence.
Learned counsel for the petitioners has extensively taken this Court to the provisions of Order 39 Rule 7 CPC to submit that there was no occasion for conducting inspection of any site and has also relied upon judgment passed by Coordinate Bench of this Court in SBCWP No.4652/2013 (Capricorn Life Style Pvt. Ltd. Vs. Sunil Kumar & Anr.) decided on 05.12.2014 and submits that such a course was not available for the learned trial Court for appointing the Commissioner.
Heard learned counsel for the petitioners.
(3 of 3)
[CW-1999/2019]
This Court finds that the learned trial Court has allowed the application moved for appointment of Commissioner in exercise of powers conferred under Order 39 Rule 7 CPC.
In view of the fact that there is a dispute regarding the boundaries of the “Bara” amongst the parties, who have filed a suit for partition, for the purpose of correct adjudication and for assessment of correct position of the demarcation of land.
Learned Court has passed orders appointing Commissioner exercising his judicial discretion. The judgment cited by learned counsel is not applicable in the present case and is distinguishable on facts. In the judgment (supra), the challenge made before the High Court was the order passed by the learned Court, whereby the application moved the Order 39 Rule 7 CPC had been rejected. In view thereof, this Court held that it is the judicial discretion of the concerned trial Court and refused to invoke the powers under Article 226 of the Constitution of India.
Accordingly, this Court does not find any reason to warrant interference with the order passed by the Court below.
The present writ petition is accordingly dismissed.
(SANJEEV PRAKASH SHARMA),J
Ravi Kh./78
2 issues framed by the court
Whether the trial Court had the power under Order 39 Rule 7 CPC to appoint a Commissioner to conduct demarcation and take photographs of disputed land in a partition suit.
Whether the High Court should interfere with the trial Court's order under Article 226 of the Constitution of India.
Colour shows how this judgement treated each authority
Capricorn Life Style Pvt. Ltd. vs. Sunil KumarDistinguished¶33
SBCWP No.4652/2013 (Capricorn Life Style Pvt. Ltd. Vs. Sunil Kumar & Anr.)
2 provisions across 2 enactments
Raghnath Das and Others
Pushkar Das
Sanjeev Prakash Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
